Injured cyclist awarded damages when path did not meet Austroads

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Permalink Reply by Wombat on March 11, 2010 at 8:52am

FAR OUT!! This has implications for South Australian bike paths such as the Unley Bicycle Route between Goodwood Rd and King WIlliam Rd.

I previously mentioned how poor this path was in the dark, but the Judge's assertion that the path should have no obstacles within a metre of the path is one that is sure to effect how Unley Council approach the upgrade to the path... whenever that happens.

I have a contact at Unley Council so I will surely be bringing this report to his attention.

Permalink Reply by Carla Scragg on March 11, 2010 at 12:48pm

Woo hoo! Charles Sturt, I'm SO coming for you, after I clean up Adelaide City...(I have massive problems with overhanging tree branches obscuring visibility near Port Road, and that irritating white bar that prevents me from continuing on the path to cross the river - couldn't a couple of poles be put there instead Mr Harbison?)

Permalink Reply by heather on March 12, 2010 at 10:14am

I do not live in Charles Sturt but cycle there infrequently. I have emailed the council a few reports: graffiti plus hazards for cyclists and pedestrians. To date I have found them approachable and even received thank you letters.

You say that overhanging tree branches obscure cyclist visibility. Do you have a secondary complaint of pedestrian hazard? An overhanging branch may present a hazard for a visually impaired pedestrian. Even if it is only a few twigs, suspended from the branch, that are at eye level. I learnt from a blind lawyer that this can penetrate a blind eye and cause infection. A council may be more able to comprehend a pedestrian hazard. So if pertinent, I would report both hazards. council@charlessturt.sa.gov.au

On 14 Feb I was a spectator at a triathlon from Midcourse Reserve, West Lakes, within Charles Sturt. I sprained my ankle in a hidden hole near the NE corner. Does anyone know if the hole has been filled since? With the milling crowd I had no chance to see that some grass was 10mm above the rest, due to water collecting in the hole. In different circumstances, I doubt that anyone would have realised this anyway. Surely council staff would have filled the hole, if they had noticed the slightly taller grass and realised that it signified a hole?

At times I feel the ankle while cycling, but it is worse when I walk. Think my ankle has recuperated, then suddenly limping again. So I went to a physio on 3 March, and learnt that I had torn some flesh that keeps some ligaments in place. She said it is best to exercise the ankle, but to take it easy when walking. Since the sprain, I have not been to my weekly suburban walking group. The physio has seen sprains that last 6 months. Will I ask Charles Sturt Council to reimburse my physio costs?

Permalink Reply by Joseph Wearing on March 12, 2010 at 10:28am

If you'd like legal advice you are welcome to contact me directly: jwearing@bournelawyers.com.au. I won't provide advice on a public forum like this, as you are entitled to keep legal communications confidential.

Permalink Reply by Clive Palfrey on March 12, 2010 at 12:18pm

If it's low enough to obscure your vision why not carry a pair of secataurs with you and do a little pruning every now and then, I've done it many a time but usually make sure nobody can see me.

Permalink Reply by Carla Scragg on March 12, 2010 at 12:52pm

I really like that idea! In my instance, it's a branch that's hanging down right by the bike/pedestrian crossing on Park Terrace (I think that's the name?) right before you get to Port Road, I have to duck quite a bit to get past, so I'd have to do it without too many people seeing...maybe a saturday night...

Then if I cut it I'd miss having something to complain about! :)

Permalink Reply by heather on March 12, 2010 at 12:56pm

There are laws about cutting public foliage. The Local Government Act permits fining of unauthorised people who cut council trees. The tree branch may to too large or awkward to cut readily without being seen in action. Try the council first. It may be good to remind council of their obligations for cyclists and road safety.

Why I researched the Act. My house foundations and thus house were damaged by a council street tree that was too close to the house, in breach of an Australian Standard on house footings. Took much lobbying to get the tree removed, but too late for my house and my finances. My insurance company side stepped it, saying the council was responsible. The council relied on the Local Government Act to avoid paying any compensation. Ever since I have lived in very unpleasant sub-standard housing.

After that, the council continued to plant trees outside my house, in breach of Australian Standards or other guides like Consolidated Regulations Under the Waterworks Act. Thirteen trees in all, many repeated plantings as a sapling failed or vandalism. If I had interfered with any of the saplings, I would have been subject to a $1000 fine.

Permalink Reply by Clive Palfrey on March 12, 2010 at 5:36pm

I was talking about cutting back a little foilage as opposed to deforestation

Permalink Reply by heather on March 12, 2010 at 9:39pm

I realise you were talking of removing a branch, not a whole tree. A sapling can be smaller than a branch. A warning not to get caught in the act and fined.

From Carla's description, and without seeing it, sounds like the tree is on a bicycle path which may be under the control of DTEI.

Permalink Reply by jeff Lock on March 11, 2010 at 12:53pm

What it will do is give councils one more excuse for not doing anything or even worse winding back and shutting down their feeble attempts at cycling infrastructure already attempted.
Just look at the Linear Park now all you get to see along a lot of it now is a bloody great fence.

Permalink Reply by Angus Kingston on March 11, 2010 at 1:06pm

Yeah! They replaced my great runway ramp with stairs in their recent upgrade. And the fence! Surely it'd be better to run into the water than to smack into a fence.

Permalink Reply by Joseph Wearing on March 11, 2010 at 3:32pm

The decision is interesting, but I don't think it opens any floodgates.

In SA we have to contend with section 42 of the Civil Liability Act, 1936 which provides:

42—Liability of road authorities
(1) A road authority is not liable in tort for a failure—
(a) to maintain, repair or renew a road; or
(b) to take other action to avoid or reduce the risk of harm that results from a
failure to maintain, repair or renew a road.
(2) In this section—
road means a street, road or thoroughfare to which public access is available to
vehicles or pedestrians (or both), and includes—
(a) a bridge, viaduct, busway (including the O-Bahn) or subway;
(b) an alley, laneway or walkway;
(c) a carpark;
(d) a footpath;
(e) a structure associated with a road;
road authority means—
(a) a body or person in which the ownership of a road is vested by statute, or to
which the care, control and management of a road is assigned by statute; or
(b) if the road is on land of the Crown—the Crown or the Minister responsible
for the care, control and management of the land; or
(c) any other public authority or public body that is in fact responsible for the
care, control and management of a road;
vehicle includes—
(a) a motor vehicle;
(b) a bicycle;
(c) an animal that is being ridden;
(d) an animal that is being used to draw a vehicle,
but does not include a tram or other vehicle (except an O-Bahn bus) that is driven on a
fixed track.

From the summary of the judgement on the BV website (I cannot find it reported yet) section 42 would not have given a defence to the Bayside City Council because the BCC actually created the hazard - the hazard did not arise from a failure to maintain, repair or renew. In most cases though the danger will have arisen from failure to maintain or repair.

Whether a failure to cut back an overhanging tree is a failure to maintain or repair the road is a nice question but don't go breaking your neck in the hope you'll have it answered!

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